In his testimony Judge Roberts insisted that his personal views will be irrelevant to his legal decisions:

"My faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source."

"I will not take to the Court whatever personal views I have on the [right to die] issues, and I appreciate the sensitivity involved. They won't be based on my personal views. They'll be based on my understanding of the law."

Now that we are all Realists, statements like this can sound a bit jarring. Opponents on the Left have been openly skeptical of these claims.

Why would comments like this elicit a snicker? Here are two obvious alternatives: skeptics think he is lying--saying this now to get the CJ seat, but planning to advance his personal views once he gets on the SC; or skeptics think his claim is impossible--personal views inevitably color legal decisions. The former would make Judge Roberts dishonest, the latter deluded. Put in such direct terms (not pulling any punches), these would seem to be harsh alternatives. Little in his backgound suggests that he is devious or naive.

Skeptics might have seen his statements as more plausible if he had added: "Of course at some fundamental level our personal views may subconsciously color how we interpret law, especially when the clause being interpreted is open-ended..." This is the standard view of judging within the legal academy, at least with respect to the Supreme Court.

But consider what the response would have been if Judge Roberts had said "My religious and personal views will form the basis for my legal decisions." Many people, including those within the legal academy, would say that disqualifies him from the position.

This seems to place Judge Roberts in a Catch 22: he is scoffed at if he denies that his personal views will determine his legal decisions, but he is disqualified if he says that they will determine his legal decisions.

A way out of this box is to recognize that Judge Roberts was describing the ideal that judges should live up, and asserting that he would strive to meet this ideal to the extent humanly achievable. Neither Realism nor postmodernism would deny that there is a real difference between instructing judges to decide based upon on what the law requires, versus instructing judges to decide based upon their personal views. Judge Roberts recognizes this difference and firmly promised that he would do the former.

I find Judge Roberts' conservative personal views worrisome. I want his decisions to be based on the law rather than on his personal views. Rather than dismiss his claims to this effect, perhaps people on the Left should applaud him for making this promise, and encourage him to live up to it. He certainly is preferable to the most likely alternative (perhaps up next): a Justice who has fewer qualms about letting her conservative personal views determine her legal decisions.

I've seen some version of the following post on a number of blogs recently (I stole this from the highly recommended ACS blog). "Irell & Manella and Quinn Emanuel have announced a raise in first-year associate salaries to $135,000. Higher salaries may induce more young lawyers to choose firms over public and non-profit jobs. " Folks, let's be realistic here. The vast majority of full professors at respectable universities (though not Harvard) who are in the social sciences and humanities do not make $135,000 (I'm nowhere near that). I have many good friends, 50ish, who teach in the public school system who make even less. Yet all of us live in housing that is not about to be condemned and manage to both feed and put clothes on our children. In short, the rest of the world does live or would live quite comfortably on a public interest law salary (such income is an unrealistic fantasy, even for most Americans). One virtue of a free enterprise system is you get to start at $135,000 if that is what someone is willing to pay you. Athletes do even better. But let's not fool ourselves. If a raise from 130,000 to 135,000 convinces a late 20 year old to forego public interest law, there was not much of a commitment to public interest law in the first place.

This article in the Washington Post helps counteract an false assumption about evolution that many have made. This is the assumption that because evolution is a theory of historical change it can only be confirmed by the fossil record, rather than by performing experiments today that make potentially confirmable or falsifiable predictions. In fact that's not the case:

When scientists announced last month they had determined the exact order of all 3 billion bits of genetic code that go into making a chimpanzee, it was no surprise that the sequence was more than 96 percent identical to the human genome. Charles Darwin had deduced more than a century ago that chimps were among humans' closest cousins.

But decoding chimpanzees' DNA allowed scientists to do more than just refine their estimates of how similar humans and chimps are. It let them put the very theory of evolution to some tough new tests.

If Darwin was right, for example, then scientists should be able to perform a neat trick. Using a mathematical formula that emerges from evolutionary theory, they should be able to predict the number of harmful mutations in chimpanzee DNA by knowing the number of mutations in a different species' DNA and the two animals' population sizes.

"That's a very specific prediction," said Eric Lander, a geneticist at the Broad Institute of MIT and Harvard in Cambridge, Mass., and a leader in the chimp project.

Sure enough, when Lander and his colleagues tallied the harmful mutations in the chimp genome, the number fit perfectly into the range that evolutionary theory had predicted.

Their analysis was just the latest of many in such disparate fields as genetics, biochemistry, geology and paleontology that in recent years have added new credence to the central tenet of evolutionary theory: That a smidgeon of cells 3.5 billion years ago could -- through mechanisms no more extraordinary than random mutation and natural selection -- give rise to the astonishing tapestry of biological diversity that today thrives on Earth.

Evolution's repeated power to predict the unexpected goes a long way toward explaining why so many scientists and others are practically apoplectic over the recent decision by a Pennsylvania school board to treat evolution as an unproven hypothesis, on par with "alternative" explanations such as Intelligent Design (ID), the proposition that life as we know it could not have arisen without the helping hand of some mysterious intelligent force.

Contemporary genetics is now strongly computational, involving the manipulation of databases. As genetics has become digitized, it has become possible to perform experiments that can confirm or disconfirm particular theories of evolutionary development, and indeed, the basic claims of evolution itself. So far, Darwin's basic claims have held up remarkably well, indeed as well as probably any other scientific theory first proposed in the middle of the 19th century.

Scott Horton, a partner at Patterson, Belknap, Webb & Tyler LLP, President of the International League for Human Rights and a widely known international human rights expert, has graciously agreed to continue writing occasional posts on torture and related legal issues while Marty takes a breather. Please give him a warm welcome.

"Command is a sacred trust. The legal and moral responsibilities of commanders exceed those of any other leader of similar position or authority. Nowhere else does a boss have to answer for how subordinates live and what they do after work."

With a sense of timing that can only be described as exquisite, the Secretary of the Army, Francis J. Harvey, and the Army Chief of Staff, General Peter J. Schoomaker, have published a defense of the Army's handling of the torture and prisoner abuse scandal in the National Review Online, just as another, particularly gruesome, chapter in this seemingly endless saga breaks across the front pages of the nation's newspapers. See here, here, and here. We are rapidly arriving at the point where the denials of military senior brass and political appointees who supervise them can only be viewed either as shirking responsibility or as confirmation that torture and abuse are official U.S. policy. It is hard to judge which of these alternatives is more harmful to the nation and its armed forces.

Torture at Camp Mercury

The new stories paint a now very familiar tale. They focus on an airborne unit stationed at Camp Mercury, a forward base near Fallujah, in some of Iraq's most hotly contested real estate, and they date from 2003 and 2004 -- which is to say, the events were ongoing as the Army conducted its internal investigation focusing on Abu Ghraib and other detention centers in Iraq. However, other new reports emerge from Camp Tiger, located on the Iraqi-Syrian frontier, and from Afghanistan.

According to the allegations -- detailed in a new Human Rights Watch Report -- Military Intelligence (MI) officers directed soldiers in daily beatings of prisoners before they underwent interrogation. Some beatings were severe, involving brutal disfigurement. In one case a detainee's leg was broken by blows from a metal bat. Other techniques used included subjecting detainees to strenuous exercises until they collapsed into unconsciousness; and exposure to extremes of heat and cold. As at Abu Ghraib, prisoners were stacked in human pyramids and had their faces exposed to burning chemicals. Food and water were withheld and prisoners were regularly forced into stress positions. CIA interrogators were involved along side of MI personnel, and by some accounts the CIA was the source of some of the torture techniques.

Torture for Amusement

Detainees were designated as "PUCs" (pronounced "pucks") for "persons under control." At Camp Mercury, torture and abuse of prisoners was made a matter of pasttime and amusement. Two techniques were developed to allow soldiers to "blow off steam." These were called "fuck a PUC" and "smoke a PUC." "Fuck a PUC" involved beatings and physical abuse and "smoke a PUC" entailed forcing a prisoner to exercises or physical exertions until he collapsed.

The Human Rights Watch report quotes an NCO as saying that "on their day off, people would show up all the time. Everyone in camp knew if you wanted to work our your frustration you show up at the PUC tent. In a way it was sport."

The Role of Command Authority

Bad as this is, it gets worse. Soldiers state they fully appreciated that the abuse to which the detainees were subjected was sanctioned up the chain of command. A decision apparently had been made not to apply the Geneva Conventions in the War on Terror, and unambiguous instructions had come down the line of command to "take the gloves off" with the detainees. But one officer saw Donald Rumsfeld testifying before the Senate Armed Services Committee in 2004 saying that the Geneva Conventions were being respected in Iraq. "Something was wrong," he said. The officer went up the chain of command and to the JAGs in theater trying to get clarification of how the Geneva Conventions could possibly permit what was happening. He got nowhere. Moreover, he found he was subjected to implied and direct threats. Asking questions or reporting on what he saw would affect "the honor of the unit" and would damage his career.

The officer attempted to report these matters to several Republican senators. When his intention to do this became clear, officers in his chain of command denied him leave and took other steps to block his actions.

These facts echo strongly the recent reports on the murder of General Mowhoush, involving CIA, special forces and MI and a failed cover-up, that reached high up the ranks. Both cases provide a perfect backdrop for evaluating the claims made by Harvey and Schoomaker in the National Review.

Army Values

The Army is the oldest of the nation's institutions, antedating the Presidency, the Congress and the courts. It played a unique role in defining and unifying the nation and in fixing the traditions with which the country has been associated since its founding. First among these may well be the tradition of humane warfare, articulated by George Washington after the Battle of Trenton, December 24, 1776. "Treat them with humanity," Washington directed with respect to the captured Hessians. He forbade physical abuse and directed the detainees be quartered with the German-speaking residents of Eastern Pennsylvania, in the expectation that they would become "so fraught with a love of liberty, and property too, that they may create a disgust to the service among the rest of the foreign troops, and widen the breach which is already opened between them and the British." (Things unfolded exactly as Washington envisioned). Washington also set the rule that detainees be given the same housing, food and medical treatment as his own soldiers. And he was particularly concerned about freedom of conscience and respect for the religious values of those taken prisoner. "While we are contending for our own liberty, we should be very cautious of violating the rights of conscience in others, ever considering that God alone is the judge of hearts of men, and to Him only in this case are they answerable." I provide a more extensive account of Washington's doctrine on treatment of detainees and its philosophical underpinnings here.)

Under Abraham Lincoln, in 1863, Washington's orders were expanded in the world's first comprehensive codification of the laws of war, General Orders No. 100 (1863), also called the Lieber Code. Among other points, Lincoln clarified what was meant by "humane" treatment. It could under no circumstance comprehend torture, he directed in article 16.

This tradition has been a source of pride for our nation for over 200 years. Thepressing question today is whether this legacy has been betrayed by those in the highest positions of our Government and in the Department of Defense. The evidence to this effect is now overwhelming.Doctrine and Training

The Secretary of the Army and his Chief of Staff (Harvey and Schoomaker) give appropriately prominent discussion to doctrine and training issues. They recount steps that have been taken to clarify doctrine and to train soldiers in it. Unfortunately, their account is unconvincing. In fact, some of the clearest evidence of command liability can be found in doctrine and training. Military commanders owe their soldiers clear, unambiguous guidance on how interrogation is to proceed and how detainees are to be treated. Instead, the most charitable way we could characterize the situation would be to say they have created a fog of uncertainty in the area (whereas until 2001, the sun had shone with exemplary brightness).

We should start with Field Manual 34-52 (1992), entitled "Intelligence Interrogation," a highly regarded document that gives guidance on interrogation practices. Conscientiously followed, the manual would have prevented most, and perhaps all, of the abuse that occurred in Iraq, Afghanistan and Guantánamo. To a large extent, these problems spring from a conscious decision by command authority to set this manual aside -- while not replacing it with any new guidance. Indeed, notwithstanding promises that a new version of FM 34-52 would be issued, none has come. The press reports out of Camp Mercury are completely consistent with other reports showing no training on the Geneva Conventions or the traditional rules prohibiting abuse, many of which are in the Uniform Code of Military Justice. This is an unambiguous responsibility and failing of leadership at the highest levels.

But this is about the most generous reading of the facts that is possible.

There is also a darker and more ominous reading. A strong case is emerging that decisions were made at the level of the Office of Secretary of Defense -- and perhaps higher -- to open the door to experimentation with tactics that are acknowledged as cruel, inhuman and degrading, and that will certainly be counted as torture by many experts. Marty Lederman's most recent post is hard on the trail. Assistant Attorney General Levin's February 4, 2005 letter strongly suggests the impact of DOJ advice and guidance on military doctrine, implemented in the field in Iraq, Afghanistan and Guantánamo. This gives a Rosetta Stone-like quality to the still-withheld Yoo memorandum of March 14, 2003. Until the Yoo March 14, 2003 memo is released to congressional oversight -- and to the public -- it is impossible for any serious analyst to accept the Harvey and Schoomaker claims about the role of doctrine. To the contrary, the unjustified withholding of this document -- along with the military's own Church Report, and the numerous primary documents collected during that investigation -- invites a strong inference that their claims are false. Moreover, at this point the text of the March 14, 2003 memo in and of itself is not enough. We need to see exactly how it affected military doctrine in the form of advice given by the DOD General Counsel's office, the JAG Corps, and the Military Intelligence branch, among other things. Some e-mail traffic I have seen among MI officers in Iraq suggests that this memo shaped actions on the ground in the War on Terror within a matter of weeks, if not days.

Transparency

Harvey and Schoomaker write that "no other institution in the world has taken a more critical look at itself, or been more transparent in pursuit of the truth, than the United States Army." They cite a series of twleve separate investigations. But the investigations that were conducted and the results that flow from them suggest anything but transparency or a willingness to come to grips with the problem presented. By definition, investigations conducted under Army Regulation 15-6 are limited by the strict parameters fixed by the command authority; more significantly, they look down the chain of command, not up it. Thus, the investigations are perfectly positioned to scapegoat and avoid the responsibility of those up the chain of command, and particularly of political appointees, who are fully immunized from review in these processes. Investigators who pursued these investigations may very well have performed their duties with professionalism and diligence, but those who have examined the full texts of the reports against the "executive summaries" that work their way into the public often detect striking discrepancies. Of the existing reports, the Fay/Jones and Taguba reports are particularly valuable and reflect impressive and scrupulous work by investigators. They also contradict the claims of Harvey and Schoomaker about the nature of the problem and the identity of those responsible.

More Rotten Apples

The problem in the view of Harvey and Schoomaker is simple: "A small number of our soldiers have not lived up to the Army values." They thus continue the claim set out by President Bush and Secretary Rumsfeld that a few "rotten apples" are responsible for the abuses that have been reported.

Former Secretary Schlesinger gave it a different flourish, saying that the abuses at Abu Ghraib related to "Animal House on the night shift," and suggesting that a small group of improperly supervised junior enlisted personnel inspired by college fraternity pranks were responsible for the worst of it. Are these characterizations really consistent with the reports? The answer is clearly "no." The report of Lt. General Randall Mark Schmidt subsequently exposed Schlesinger's characterization as a sham. When Schmidt reviewed allegations of abuse at Guantánamo, he repeatedly noted incidents identical or nearly identical to those covered in the Fay/Jones report. However, time after time, Schmidt recommended no punishment on the grounds that the abusive, degrading and inhuman treatment that was being doled out was fully consistent with established interrogation procedures and the law. Marty Lederman'smasterful analysis of this report remains unmatched.

But beyond this, is it really credible to talk of a "few rotten apples," when the number of those concerned goes from six, to a dozen, to nearly a hundred, and now to several hundred, operating in installations around the world and engaging in suspiciously similar patterns of conduct? As a commentator in Slate wrote earlier this year:

Are there really that many bad apples in today's vaunted, all-volunteer,highly educated military? Doubtful. What's more likely is that the U.S. military has been corrupted by a morally and politically ambiguous mission, poorly trained and resourced for occupation duty, forced to work with impractical rules of engagement, and left with too few troops to do the job in Iraq. Cumulatively, all these external factors enabled a few sadistic soldiers (led by derelict officers) to do their dirty deeds at Abu Ghraib. But the Army refuses to acknowledge the role these systemic factors played, choosing instead to heap all the blame on a few junior enlisted soldiers. Those soldiers now face prison time, unlike their officers, who are being let off with administrative reprimands.

Harvey and Schoomaker claim that "each report has established that the abuses did not result from promulgated interrogation policies and procedures, nor were they directed, sanctioned, sanctioned or encouraged by senior leadership." This statement is flatly untrue. Particularly since the Army investigations were not permitted to examine the role of policymakers in these events, it is striking how far they go in demonstrating the role that departure from long-settled policy on interrogations and treatment of detainees played in the abuses that occurred. Moreover, the Fay/Jones and Taguba reports, and the Schmidt report, each implicated senior officers in wrongdoing and recommended action. The following senior officers were cited in connection with possible disciplinary measures: LTG Sanchez, MG Wojdakowski, MG Fast, MG Miller, BG Karpinski, Col. Warren and Col. Pappas.

Of these, only Karpinski and Pappas were disciplined and the circumstances ofeach disciplinary action shows cartwheels being turned to avoid addressing the focal problem of detainee abuse. The rest were spared disciplinary action through command decision or other bureaucratic legerdemain. It is particularly noteworthy that General Karpinski has stated in a subsequent interview that she saw directions issued by Secretary Rumsfeld, bearing his own handwritten notations, encouraging the use of brutal interrogation tactics in Iraq. "It was a memorandum signed by Secretary of Defense Rumsfeld, authorizing a short list, maybe 6 or 8 techniques: use of dogs; stress positions; loud music; deprivation of food; keeping the lights on, those kinds of things," Karpinski said. "And then a handwritten message over to the side that appeared to be the same handwriting as the signature, and that signature was Secretary Rumsfeld's. And it said, 'Make sure this happens' with two exclamation points. And that was the only thing they had. Everything else had been confiscated."

But most significantly, notwithstanding the preparation of memoranda and orders at the highest echelons of the Department of Defense reflecting the approval of aggressive new interrogation techniques, the investigations proceed with the highly implausible assumption that these policy decisions had no effect on what happened on the ground in Iraq. Since the U.S. Army's command-and-control structures are the envy of the world, this assumption lends an element of the surreal to these reports.Critical Self-Examination

Harvey and Schoomaker also claim that the reports reflect that the Army took a "critical look at itself" and that it "investigated every credible allegation of detainee abuse." But the cumulative evidence shows that, although the investigators and staff took their work seriously, the focus of those higher up was on a whitewash. An excellent example of this can be found in the work of MG Fay, who before being called up was a New Jersey insurance executive best known for his fund-raising activities on behalf of the Bush-Cheney campaign. As it happens, I was in Germany in the spring of 2004 at roughly the same time that MG Fay was there interviewing soldiers and officers with V Corps MI units. Having some contacts with these units, I took the time to speak to a number of NCOs and officers to get a sense of just how Fay was conducting his investigation. What I heard was consistent and very disturbing. Fay repeatedly warned soldiers that if they were involved in incidents, they would be put up on charges. And if they had seen things and not reported them, they would be up on charges. Then he asked if the soldiers had anything to report. One soldier told me that when he began to describe an incident to Fay, he was stopped and told "Son, you don't want to go there." This process was constructed to stop soldiers from coming forward with evidence about what had happened -- the opposite of a fair or critical inquiry.

But I stress that among the twelve investigations conducted, the Fay/Jones report was one of the best. One wonders what it would have netted had proper investigatory technique been used.

Shirkers at the Top

The torture and abuse saga has now raged on the public stage for 18 months, and a comparison of the Harvey/Schoomaker article with the current newspaper headlines suggests strongly that the Pentagon views the problem as little more than a public relations squabble. This scandal exposes an assault on core values of the Army by senior policymakers -- for the most part political appointees outside the scope of military investigation. The doctrine of humane treatment has been all but eviscerated. But for the long term, the damage done to the doctrine of command responsibility may be even more troubling.

Under both military doctrine and U.S. law (Ex parte Yamashita, 327 U.S. 1 (1946)), command authority bears responsibility for the conduct of soldiers under its supervision. Where command authority fails to control the operations of its troops, particularly by permitting atrocities and war crimes, the command authority assumes criminal liability. Similarly, when crimes are committed and the command authority fails to punish those with supervisory responsibility, the result may be to pass criminal liability up the chain of command. In light of the disciplinary actions recommended and not carried out with respect to general and field grade officers, and the fact that detainee abuse remains unresolved after the passage of years, criminal responsibility has now been passed up the chain of command to those who exercise oversight, potentially including the authors of the National Review piece. This liability exists independently of liability that may arise from the formulation and implementation of policy that foments or permits abuse.

As a highly regarded Army reserve lawyer -- now called up to active duty in Iraq -- recently wrote, these developments cumulatively reflect "abdication of responsibility by the Defense Department and the Army. The question is not whether these officers actually directed the abuses or participated in them; rather, the question is how they acted as generals and leaders to facilitate the abuses, fail to prevent them, or fail to stop them." The introduction of torture and abuse as interrogation practices has badly corrupted military intelligence and is undermining morale and discipline throughout the service. The decision to scapegoat the "grunts" for decisions that clearly were taken at or near the top of the chain of command has further undermined confidence in the chain of command and in the integrity of the Army as an institution. The systematic denial of the doctrine of command responsibility threatens the ethic of the military on the most fundamental level. One must wonder when and where this whirlwind of destruction that now engulfs our military and threatens to undermine our national security will end.

Washington's Admonition

The nation's first commander-in-chief had a firmer and more comprehensive grip on these issues than his successor 230 years later. Washington engaged in no equivocation on the concept of treatment of those under our power. He ordered that "should any American soldier be so base and infamous as to injur[e] any [of them]... I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause." Any officer who failed to heed this direction, he said, would bring "shame, disgrace and ruin to themselves and their country." Departure from this injunction was a grave mistake.

If Harvey and Schoomaker are right, and a "small number" have failed to live up to the values that Washington and Lincoln fixed, it is increasingly clear that that "small number" sits at the top of the chain of command, not at the bottom. The time has come for accountability.

I've just been reading the manuscript of William Wiecek's superb forthcoming volume in the Holmes Devise History of the Supreme Court, and found its reminder of what Robert Jackson had said in the Court's deliberations over Brown v. Board of Edcuation quite provocative, in light of the praise John Roberts heaped on Jackson (and the praise that was heaped on John Roberts for praising Jackson).

During the Court's deliberations, Jackson repeatedly said that a decision to overrule Plessy v. Ferguson had to result not from a legal judgment but from a sociological (sometimes, a political) judgment. What's important here is that Jackson did indeed join the majority in Brown, demonstrating, it would seem, that in his view it was (sometimes? often? always?) appropriate to rest a constitutional decision on a political rather than a legal judgment. Roberts, as noted, expressed his admiration for Jackson as a justice. Yet, during the confirmation hearings, Roberts repeatedly insisted that there was a serious distinction between law and politics, and that -- as I interpret his comments -- constitutional decisions should always rest on law, never on politics.

A couple of thoughts: (1) Oddly enough, Jackson has become an icon, who it is important to have on one's side no matter what one thinks. I should add that I'm not a Jackson enthusiast. He could get off a good literary line or two, but, frankly, he couldn't write a coherent opinion that hangs together from beginning to end. Just try to make sense of his opinion in Eisentrager, for example. Even worse, try to make sense of his opinion in Steel Seizure taken as a whole (what exactly is a court supposed to do when a case falls in the twilight zone of category 2 -- something? nothing?). And, worst of all, try to explain why he cast a vote on the merits in Korematsu given his view that anything the Court did would be bad (maybe he could cast a vote on the merits only because doing so was inconsequential, but if so one would like an explanation to that effect).

(2) Even people who think they endorse the law/politics distinction don't know what they mean in doing so -- or rather, "I endorse the law/politics distinction" means "I'm not William Brennan or Earl Warren" (and nothing more).

Last month, the American Prospect published a short essay suggesting that the goal of American policy in the Islamic World ought to be to find Osama Bin Laden and bring him to justice. I'm no expert on the Middle East and anti-terrorism, but I wondered whether that was right. If the point of capturing bin Laden is that he plays a crucial role in Al-Quida, so that his capture is likely to save a great many innocent lives, I have no problem with risking military lives in an effort to realize this goal. But the essay seemed to offer a Kantian rationale, that Americans ought to continue efforts to capture Bin Laden because he deserves to be punished.

I'm not sure about this one. Indeed, I think it is wrong. Imagine, even hypothetically, that either Bin Laden is no longer capable of doing much harm or that his capture is unlikely to effect Al-Quida much. Again, I have no clue whether these assumptions are correct, they are simply being advanced for the purpose of argument. Imagine further that efforts to capture Bin Laden are likely to result in the death of American soldiers and (relatively) innocent civilians. Should American soldiers risk their lives and the lives of innocent civilians just to bring someone to justice. I confess to thinking this mistaken policy. Our goal in the Islamic world, among other things, should be reducing future violence. Bringing the perpetrators of past violence to justice ought to be a priority only to the extent that doing so reduces future violence (and I rather doubt that any future Bin Laden will be deterred by the prospect of criminal punishment). Kant might be upset with Bin Laden being allowed to live out his days in a hole somewhere, but I would rather he be upset than more parents grieve that their children were killed in a mission that had no practical consequences.

My colleague Dan Markovits has an elegant proposal that combines good works with an important political statement: He urges people to give back the amount they benefited under the Bush tax cuts to the victims of Hurricane Katrina If the politicians won't do it, we should do it ourselves. This act, he argues, is an expression of solidarity and shared sacrifice, something which the Administration has never asked of Americans but which is all the more necessary in these troubled times.

I received hundreds of emails in response to my textbook oped and thought it might be worthwhile to share some of the feedback (I’m not sure whether it is kosher to reveal the names in these emails, so at least this time, I will leave them out. But most of the ideas posted here are from other people).

1. School ownership of books helps Voldemort.

Close readers of Harry Potter and the Half Blood Prince will realize that forthe first time Harry used a used textbook with somewhat ruinous results.

2. Textbook Rentals already occur at some colleges (Southern Illinois University, some University of Wisconsin branches).

3. The Harvard Crimson published an article 7 years ago that made virtually all the points that I made – maybe the biggest difference is that the General Chemistry textbook was only $97 instead of $148.

4. Congress might consider a rule that when a new edition is published any edition that is more than three edition in the past comes into the public domain. This idea (which is inspired by a similar idea of the great Aaron Edlin) would really dampen the edition churn. Publishers would only want to crank out a fourth edition if they were pretty sure it was an improvement over the 1st edtion.

5. The possibility of Xeroxing or ripping textbooks and illegally putting pirated pdf versions up on Grokster may drive publisher to cut licensing agreements with Universities. If a university has 130 students taking calculus, it would license 130 pdfs from the publisher.

6. One law dean wrote and said he plans to publish prices of assigned textbooks so that students have more info.

8. Of course, some people reasonably suggest that we can solve problems if professors just are a bit more altruistic and give away their materials on the Internet. Some have succeeded with the Lessig-like hybrid of giving away pdfs but giving consumers the option of buying for price a traditional bound copy.

9. Some people criticized my analysis of high textbook prices. One professor claimed that it was inappropriate for me to generalize in a 600 word oped and that he in fact did pay attention to price. Another professor said that my ideas were not new and that I lacked the courage of my convictions because I didn’t give away my copyright. I was also criticized for not giving sufficient attention to the publisher’s response to GAO report, and for not mentioning that the GAO report concluded that the market was competitive.

10. As to my $11 rebate: I’ve received emails that other professors have given out cash rebates in the past and that a bunch have started to do it in response to my action (one professor even reported an increase in enrollment because of his cash rebate). One problem with rebates is that they don’t get the taxes right. After tax I only earn $7.50 but I give a non-deductible $11 to the students (maybe IRS would accept $11 as a cost of doing business ethically or to avoid fiduciary liability (but I doubt it); maybe IRS would accept deduction if school mandated this rebate). Rebates have some advantages over professorial charitable contributions: (1) they don’t have the problem of forcing students to contribute to professor’s charity; (2) rebates are transparently incremental gifts, while hard to know whether professor actually gave more money than she would have given otherwise.

Originalism versus Living Constitutionalism, or, Do Akhil and I really disagree?

JB

My colleague, friend and co-author, Akhil Amar argues in this essay in Slate that liberals and progressives should give originalism a chance. But when you read it more carefully along with my previous remarks here and here, it's not clear how much we actually disagree. The dispute may only be about the definition of "originalism."

For example, I argue that

A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today's circumstances. Original meaning does not mean original expected application.

Does Akhil disagree? Here is what he says:

As I see it, text without context is empty. Constitutional interpretation heedless of enactment history becomes a pun-game: The right to "bear arms" could mean no more than an entitlement to possess the stuffed forelimbs of grizzlies and Kodiaks. (And if history no longer constrains, why should spelling? Maybe the Second Amendment is about the right to "bare arms" and other body parts—e.g., nude dancing.)

Note that Akhil is objecting to examples where the interpreter is not paying attention to the original meaning of the constitutional text.

Now look at Akhil's reading of Brown v. Board of Education. For Akhil, the key question is not whether the framers of the Fourteenth Amendment thought that segregation of schools and other facilities was constitutional. What counts are the *principles* enunciated by the constitutional text:

But the 14th Amendment, ratified in 1868, undeniably demanded that government treat blacks and whites with equal respect, equal dignity, and equal protection. All Americans‚—black and white alike‚—were proclaimed equal citizens by that amendment. True, some framers of this amendment did say that some segregation laws might be permissible. But in saying this, many of them were envisioning a postwar world in which both races in general might prefer separate spaces (as most men and women today probably prefer sex-segregated bathrooms in public places). In such a world, they believed, segregation would not always be unequal.

But the Reconstructionists never said that segregation would always and automatically be constitutional. The Constitution's text does not say that all citizens are equal "except for segregation laws." Rather, it uncompromisingly demands equality of civil rights‚—no ifs, ands, or buts. In fact, most Reconstructionists understood that a law whose statutory preamble explicitly proclaimed whites superior to blacks would be plainly unconstitutional.

I can sign on to the idea that the purpose of the Fourteenth Amendment was to secure equality before the law for all citizens, and in particular between blacks and whites. I also agree with Akhil that the framers of the Fourteenth Amendment who thought that this principle of equal citizenship was consistent with segregated facilities were incorrect, and that we are not bound by their expectations about how the text would be applied in practice. Do we have a disagreement yet?

Perhaps Akhil is worried that focusing on original meaning to the exclusion of historical context will lead to interpretations that are divorced from the larger principles which the text was designed to articulate and enforce. If that is his concern, you can see why he is worried about what he calls "pun-games." Without a focus on the history that produced the text, you could take the text, apply the original meanings of each separate word, put them together in a creative way, and come up with a principle completely foreign to the historical purposes of the people who framed the text and those who adopted it.

If that's Akhil's concern, then we still don't disagree. That's because focusing on the original meaning of the text requires that we focus not on each word in isolation, but rather in the context of what the words chosen by the framers and adopters are trying to convey. So Akhil would argue that the purpose of the Fourteenth Amendment is to secure civil equality before the law for all citizens, and the purpose of the due process and equal protection clauses is to extend basic rights to persons who are not citizens. Again, this seems right to me. Original meaning requires a focus on underlying principles which are to be derived from a study of the historical record. History counts. It also allows (or even requires) supplementation by structural principles. And finally, it also allows the interpreter to reason from past precedents if they are reasonable ways of fleshing out the meaning of the constitutional text and the principles that underlie the text. Those precedents need not be consistent with the original expected application of the text if they better articulate the larger purposes of the Constitution.

Moreover, note that Akhil's method requires that sometimes you must read the purposes behind the text at a fairly high level of generality. Akhil's view is that the sex equality cases in the 1970's are correct because the Fourteenth Amendment's guarantee of civil equality, together with the Nineteenth Amendment's guarantee of suffrage secured equal rights for women. That is so despite the fact that there is evidence that the framers of the Fourteenth Amendment did not wish to disturb the coverture rules which effectively denied married women almost all of their civil rights, and the Nineteenth Amendment applies to voting, not to coverture. To reach this conclusion Akhil must construe the principle of equal citizenship and the principles behind the text of the Nineteenth Amendment at a fairly high level of abstraction; even if the framers thought the coverture rules were perfectly constitutional in 1868 such rules would be unconstitutional today. Again, I have no problem with this line of reasoning. But if one is willing to read constitutional texts in that (in my view enlightened) way, the differences between people who call themselves "originalists" like Akhil and people like me who believe in a Living Constitution start to vanish.

To be sure, there are plenty of people who consider themselves originalists, like Justices Scalia and Thomas, who would reject reading the Fourteenth Amendment at that level of generality, arguing instead that we are bound by the expected application of the text at the time of its adoption. Akhil, I believe, rejects that view. Does that mean that he is not an originalist? He would strongly disagree.

So is there a real disagreement here? There might be two. First, as the case of sex equality suggests, I am often more skeptical than Akhil that we can justify current doctrine by reference to the original understandings of the framers and ratifiers, preferring to ground my arguments about the best interpretation of the Constitution on a combination of original meaning, pre- and post enactment history, structure, and precedent. Since Akhil also looks to all of these modalities, it's not clear if this is more than a disagreement about emphasis.

Second, we might disagree about why the best interpretation of the Constitution changes over time. Akhil sometimes sounds as if changes in facts explain all legitimate changes in constitutional interpretation; the principles themselves never change, only their application to a new set of facts. Thus, Robert Bork once said that Brown was justified because it became clear later on that you couldn't have segregation and equality, as if a change in facts occurred between 1868 and 1954 which made segregation unconstitutional (or as if the framers in 1868 were simply innocently naive in their belief that segregation was consistent with equality). This account of changed circumstances-- variations of fact against eternal principles-- is a traditional common law conception that you will find in thinkers before Cardozo. Cardozo is among the first jurists to suggest that common law evolution involves changes both in factual understandings and in the values that are used to understand those facts. (Akhil, I should add, does not believe that all constitutional principles are timeless. Some constitutional principles are modified by later amendments which supplement or alter them. This is the point of his book on the Bill of Rights; he argues that the meaning of the Bill of Rights was modified by the ratification of the Fourteenth Amendment. His point is that constitutional principles are not properly supplemented or altered in any other way than subsequent amendment).

I tend to look at constitutional change somewhat differently. My view is more like Cardozo's: Changes in facts only become salient or relevant against the backdrop of certain values, so that changes in factual understanding go together with alterations in underlying values. What happened between 1868 and 1954 was not just changed circumstances, but political and social movements that changed people's minds about what the principle of equality before the law encompassed. For me, post-ratification social movements like the struggle for civil rights (which, by the way, goes back long before the direct action phase of the Civil Rights Movement in the 1960's) reshape our understandings of changing facts-- and of facts that have not changed-- by simultaneously reshaping our values. So unlike Bork, I do not think that many or most of the framers and ratifiers in 1868 naively believed that segregation was consistent with equality. Rather, I believe that most of them were simply not comfortable with full equality for a race so newly freed from slavery, and they wanted to preserve the greater social status that came with being white. But they were wise enough and foresighted enough to choose language that could be read more broadly than what they expected or perhaps even wanted. And we should take them at their word rather than be controlled by their concrete expectations or intentions. That is why I have written:

Just as we may see the concrete practices of justice of those who framed and ratified the Constitution as compromised and imperfect, so we must recognize that others will someday see our own attempts at justice as equally flawed and deficient. That is why we owe it to previous generations to understand and apply their constitutional aspirations in their best light. We must carry on the work that they could only begin. If we read this document as fulfilling their best aspirations rather than chaining us to their worst fears, we do them greater honor than any slavish adherence to their concrete practices could; and perhaps, if we are fortunate, we may merit an equal charity from the generations that come after us.

Now the standard way that one can avoid saying that there has been a change in values as well as facts is to articulate the relevant constitutional principles at a fairly high level of generality. I think that this is what Akhil sometimes does. He would deny it; rather he would say that he looks at the historical principles at the appropriate level of generality contemplated by the framers and ratifiers, subject to change by later amendments. Perhaps our most significant disagreement then, is not about originalism versus living constitutionalism, but a disagreement about what is actually going on in this process of constitutional interpretation.

In that first post, I tried to summarize the ways in which the second memo was a comprehensive, and thus fairly astonishing, repudiation of the first. Although I continued to have serious concerns with even the second memo, I emphasized that in issuing the latter memo, OLC had "taken a critically important step toward restoring the Office's reputation for providing rigorous and impartial legal advice: [T]he new memo's author—Acting Assistant Attorney General Daniel Levin—and other OLC attorneys who undoubtedly contributed to the careful and difficult work on the memo, deserve considerable praise (and, from those of us who revere the Office, sincere thanks for respecting many of the Office's best practices and traditions)." [Now is as good a time as any to repeat my initial disclosure: I worked as an Attorney-Advisor at OLC from 1994-2002, and I was still at the Office when it issued the 2002 Torture Opinion. I did not know anything about that Opinion, however—not even of its existence—until it became the subject of public debate in the summer of 2004, long after I had left OLC. Nothing in my posts here reflects any confidential information I may have learned while at OLC.]

Unfortunately, most of my subsequent torture-related posts here have been about more disturbing developments within, or documents emanating from, the Administration—disingenuous legal analysis; unprecedented assertions of Executive authority; dissembling, cicumlocution, and unwarranted secrecy on some of the most important public questions in the current war; etc. In order to devote more focused attention to teaching and ol'-fashioned dead-tree forms of writing, I've decided to take a break for a while from torture-related blogging. (I'll be happy to link to important documents as they're released; but I'll have to leave the parsing to others.)

Fortunately, a recent document disclosure provides an opportunity to break on a positive note. Those documents provide reason to think that perhaps OLC's institutional reversal began one year earlier than the December 2004 Levin torture memo—in December 2003, even prior to the revelation of the Abu Ghraib photos—when OLC repudiated yet another, even more far-reaching, memo in which the office had authorized legally dubious forms of interrogation. Moreover, the new documents suggest that the repudiation of OLC's conclusions might have been triggered by something as simple as a change in personnel at OLC—namely, the October 2003 confirmation of Jack Goldsmith to be the head of the office.

Some background is in order here, in order to explain why the December 2003 OLC reversal is so noteworthy:

Recently released JAG memos reveal that the legal analysis being floated within the Working Group was crafted almost entirely by the Office of Legal Counsel at the Department of Justice—by Deputy Assistant Attorney General John Yoo, in particular—and it largely tracked the unorthodox analysis contained in the August 2002 OLC torture memo.

The OLC analysis alarmed the JAGs, who implored the Department to reject the OLC legal theories. However, on March 14, 2003, John Yoo delivered a memo to DoD General Counsel William Haynes, addressing the legal issues that had become the subject of the Pentagon debate. According to Senator Levin's account of the Church Report, once the March 14th Yoo memo was received, the DoD Working Group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in [the March 14th] memorandum . . ., a memorandum [with] which the working group strongly disagreed. . . . This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues." The Yoo analysis became the legal basis for the Working Group's final Report, issued April 4, 2003.

On April 16, 2003, Secretary Rumsfeld issued a memorandum to govern interrogations at GTMO. Rumsfeld's memo did not go so far as to authorize all the techniques that had been approved as legal in the April 4th Working Goup Report. As is by now well-known, however, the extreme techniques used at GTMO somehow "migrated" to Iraq (with Major Geoffrey Miller) and to Afghanistan in 2003—where few, if any, of the safeguards described in Rumsfeld's memo were employed.

Some reports from Iraq and Afghanistan in 2003 suggest that military interrogators believed that their use of violent and coercive techniques was authorized and lawful. We don't yet have the full story of how they could have come to such an understanding, which would have been contrary to the training they had received pursuant to the Army Field Manual, and Uniform Code of Military Justice, and the Geneva Conventions.

However, one important clue emerged at a Senate hearing a couple of months ago, when DoD Deputy General Counsel Dell'Orto testified that the March 14, 2003 Yoo memo was a "binding legal opinion" that governed DoD policy after it was issued. The Pentagon and Department of Justice have refused to make that memo available, even to the Senate. But from what we can glean from the JAG memos and elsewhere, it appears that OLC gave the green light to the military to use techniques in violation of the UCMJ, the federal assault statute, and possibly even the federal torture statute—most likely on the theory, expressed in the August 2002 torture memo, that the President's Commander-in-Chief authority gives him the power to ignore such laws to the extent they restrict the President's judgment concerning "what methods to use to best prevail against the enemy."

Curiously, however, Dell'Orto also testified that "we were asked not to rely upon [Yoo's March 2003 memo] going back to December of 2003 and have not relied upon it since." (He further stated that the Yoo memo was formally "withdrawn as an operational document" in February 2005.)

So, something apparently happened in December 2003 that undermined DoD's reliance on the March 2003 Yoo memo and that, as far as we know, abruptly halted the abusive DoD interrogation practices that had been in place for the previous 13 or so months. But what?

We now have some idea—a recently released OLC letter indicates that OLC itself withdrew its support for the Yoo memo not ten months after it was issued.

First, Levin indicates that from March until December of 2003, "policies" (presumably DoD policies) were "based on the substance" of the March 2003 Yoo memo. What were those "policies"? [Update: Well, perhaps we now have a clue. What would possibly have given military intelligence interrogators, and the CIA, the idea that they (and the troops following their lead] could regularly use violence to soften up Iraqi detainees, and that they could abandon the Geneva Convention norms that they had been trained to apply? What possible explanation is there for this curt and obscure response of the Secretary of the Army to a direct complaint by an officer in the 82d Airborne that the troops didn't have clear guidance on prisoner treatment?: "Well, we realized that that was a problem but you are a little bit behind the times. We've solved that matter."]

Second, Levin writes that in December 2003, new OLC Assistant Attorney General Jack Goldsmith advised Haynes that the March 2003 memo was "under review" by OLC and "should not be relied upon for any purpose." Levin's understanding was that, subsequent to Goldsmith's disavowal of the March 14th memo, "policies based on the substance of the [Yoo] Memorandum have been reviewed and, as appropriate, modified to exclude such reliance."

Levin further notes that OLC "has formally withdrawn the March 2003 Memorandum," which has "been superseded by subsequent legal analysis." In particular, Levin writes that the July 14, 2004 testimony of OLC Deputy AAG Patrick Philbin before the House Permanent Select Committee on Intelligence "reflects a determination by the Department of Justice that the 24 techniques approved by the Secretary of Defense [in his April 16, 2003 memo] are lawful when used in accordance with the limitations and safeguards specified by the Secretary." (Emphasis added.) [NOTE: The Philbin testimony was, until recently, publicly available on the House Intelligence Committee's website. Mysteriously, that testimony—together with the testimony of Stephen Cambone, Under Secretary of Defense for Intelligence, and FBI General Counsel Valerie Caproni—has disappeared from that site, and from Westlaw, as well. Here is the Cambone testimony; and here is the Caproni testimony.] The 2004 Philbin testimony acknowledges the various legal constraints that limit coercive interrogation in the military, and—in contrast to the DoD Working Group Report—does not suggest that they may be ignored or evaded by resort to the Commander-in-Chief Clause, or defenses such as "necessity." Its defense of the 24 Rumsfeld-approved techniques, while contestable in some particulars, is fairly straightforward and not terribly alarming.

On March 17, 2005, in response to Levin's February 2005 memo, DoD General Counsel Haynes sent this memo to the JAG Corps, which was reported in July by Josh White of the Washington Post. Haynes's memo states that "in light of the Justice Department's modification of its earlier legal analysis" (a modification that had occurred 15 months previously), the legal portion of the April 2003 Working Group Report "does not reflect now-settled executive branch views of the relevant law." Haynes continued: "I determine that the Report of the Working Group on Detainee Interrogations is to be considered a historical document with no standing in policy, practice, or law to guide any activity of the Department of Defense. This determination should be disseminated throughout the the Department of Defense, as appropriate."

The Haynes memo also refers to two January 2005 JAG memos—not yet publicly available—in which the JAGs proposed a new department-wide interrogation policy; Haynes referred to that JAG-proposed policy as an "excellent starting point for discussion" on this "profoundly important issue."

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In sum, the March 14, 2003 memo from OLC Deputy Assistant Attorney General John Yoo to DoD General Counsel William (Jim) Haynes effectively ended the heated debate within the DoD Working Group about military interrogation policy; silenced the JAGs' protests; established the legal template for the April 2003 DoD Working Group Report; and apparently served as the basis for certain DoD interrogation "policies" from March until December of 2003.

But in December 2003, the newly confirmed Assistant Attorney General for OLC, Jack Goldsmith, informed DoD that OLC would no longer stand behind that memo, a disavowal that resulted in a change of DoD policies and OLC's eventual formal "withdrawal" of the memo.

Why did OLC reverse course?

It is not unprecedented for OLC to reverse one of its own prior Opinions. In the vast majority of cases, such reversals occur after a change in Administrations, where the new Assistant Attorney General (or the new President) has a different legal understanding from that of his or her predecessor. (For prominent recent examples, see footnote 53 of this Opinion and footnote 13 of this Opinion.) But there is little historical precedent for something such as the December 2004 "replacement" opinion on the federal torture statute—an opinion that, as I have previously explained, subtly but thoroughly eviscerated numerous important aspects of the notorious August 2002 torture memo issued by the same Administration. Nevertheless, although the December 2004 memo was unprecedented, it was not entirely unexpected, because the 2002 torture memo had been subject to such withering public criticism when it was leaked in the summer of 2004 (and Judge Gonzales's confirmation hearings to be Attorney General were to be convened a few days later).

But how to explain Goldsmith's December 2003 repudiation of a very important OLC Opinion issued not ten months previously? It is difficult to overstate how unusual the Goldsmith reversal was. Consider the following:

1. In OLC, as in other legal institutions (such as the Supreme Court), there is an understandably strong (albeit rebuttable) presumption in favor of adhering to prior legal advice—a form of stare decisis, if you will.

2. The ink was barely dry on the March 2003 Yoo memo.

3. Presumably, OLC had not lightly come to the conclusions in the Yoo memo, given that those views had been vigorously opposed by the JAGs and others. OLC put a good deal of its institutional authority and reputation on the line in March 2003; accordingly, there would have been a substantial incentive for OLC to stand behind its legal conclusions.

4. The Senate had just recently confirmed Jack Goldsmith to be Assistant Attorney General (on October 3, 2003)—he had been at the Office of Legal Counsel for just two months.

5. Goldsmith had come to OLC from the Department of Defense, where he was Special Counsel to the recipient of the Yoo memo, General Counsel William Haynes.

6. When he arrived at OLC, many observers might have been quite surprised (justifiably or not) to find Goldsmith at odds with John Yoo on important legal questions relating to the war on terror. Indeed, some critics had branded Goldsmith and Yoo as two of the principal legal academics among the so-called "New Sovereigntists"—a label given to recent conservative legal scholars who have been appreciably more skeptical than traditional international academics of the extent to which treaties and international law should be understood as sources of binding U.S. domestic law. Thus, for example, upon Goldsmith's confirmation Senator Leahy expressed his "concern[] about [Goldsmith's] positions as they relate to the international protection of human rights, the engagement of the United States in holding accountable those who commit crimes against humanity, the administration's use of military tribunals and, more broadly, our Nation's place in the global community." 149 Cong. Rec. S12474.

In light of this, it is fair to assume that Goldsmith could expect to run into fierce resistence from Addington, and perhaps other Administration officials, if he decided to repudiate the March 2003 memo.

9. The Yoo memo appears to have had a significant impact on DoD policy and practice. It formed the basis of the April 2003 Working Group Report (including, presumably, those portions of the Report that authorized the use of techniques that would violate the UCMJ and other statutes), and, according to the recently disclosed Levin letter to Haynes, it apparently served as the basis for certain DoD interrogation "policies" from March until December of 2003. Its repudiation, therefore, would mean removing the legal authorization for policies that had already been approved and probably implemented.

10. To the extent anyone in DoD (or elsewhere) relied on the Yoo memo as justification for engaging in conduct that would otherwise have been unlawful, Goldsmith's repudiation of that memo would leave such persons in a legal limbo—perhaps vulnerable to prosecution. (This is a complicated legal issue. In general, whether due process requires that unlawful conduct be excused where the wrongdoer has relied on official legal advice depends on whether that reliance was "reasonable." The Goldsmith repudiation might have an impact on the determination of whether reliance on the Yoo analysis was "reasonable.")

* * * *

All of which is to say that there were very significant disincentives for Jack Goldsmith to repudiate the Yoo memo. And yet he did so, very early in his tenure at OLC, and in a way that was likely to displease some important clients within the Administration. What might have caused Goldsmith to withdraw OLC's approval of the Yoo memo? Unless and until we know more from the principal players, and until we see the Yoo memo itself, we will not know for sure.

But two possibilities come to mind.

The first is that the Department of Justice had gotten wind of some of the abuses in interrogations that had occurred in Cuba, Iraq and Afghanistan, had recognized how rapidly its March legal conclusions had generated atrocities, and wished to limit the damage. Perhaps . . . but I'm skeptical. It was not yet apparent, for instance, that there would be a public scandal associated with Abu Ghraib. Although presumably certain officials within the Department of Defense knew of the brutal murder of Manadel al-Jamadi in early November 2003, the Pentagon did not receive the Abu Ghraib photos until mid-January, 2004; and I'm not aware of any indication that DOJ was aware of the scandal until some time after that. Similarly, perhaps some Defense officials knew of the CIA/Army/Scorpions murder of Iraqi Maj. Gen. Abed Hamed Mowhoush on November 26th. But even if news of such atrocities filtered down to DOJ, it is hard to imagine that the interrogators in those cases asserted reliance on the Yoo memo, and even harder to imagine that any repudiation of that memo would be viewed as a logical response to the incidents—particularly if OLC continued to stand by the legal analysis in that memo.

Second, and more likely, is that the legal analysis in the Yoo memo was simply so far outside the realm of traditional OLC norms that Goldsmith—when he reviewed the memo carefully—felt he had little choice but to repudiate it. (That conclusion is certainly consistent with the impression one gets reading the December 2004 Levin memo on torture—a memo to which Jack Goldsmith apparently contributed before he left OLC (according to a Wall Street Journal story by Jess Bravin back in December), and that substantially repudiated the August 2002 torture memo.) And if this is the explanation for the reversal, it could mean that OLC's institutional role with respect to the interrogation and torture debate may have been quite different during Goldsmith's short tenure in office from October 2003 until the late summer of 2004 than it had been before he took office.

* * * *

One final question: Where is the March 14, 2003 Memo? I realize I'm a bit of a broken record on this one. But we can't possibly understand the whole story here without seeing that memo. Senator Levin spent months asking DoD for the March 14th memo. Finally, DoD informed the Senator that whether to release the memo is not a DoD decision, and that the request should be put to DOJ. Levin turned to DOJ—but I understand that DOJ has recently refused to provide the memo, on the ground that "non-public OLC opinions are not disclosed outside the Executive branch."

This sort of non-response shows remarkable contempt for the Senate. It is, of course, question-begging: Preventing disclsoure outside the Executive Branch is what it means for an OLC Opinion to be "non-public." The fact that the memo has thus far been withheld is not a reason for continuing to withhold it. The Administration has now made available to the public the DoD Working Group Report that was predicated on the March 14th memo; the JAG memos taking issue with OLC's analysis; a memo noting Goldsmith's December 2003 repudiation of the Yoo memo; OLC's December 2004 torture memo; the Philbin testimony; etc. There is no apparent excuse—other than seeking to avoid embarrasssment—for the Administration's refusal to disclose the March 14th memo. The nominations of William Haynes and Tim Flanigan are pending before the Senate (to be a judge on the U.S. Court of Appeals, and to be Deputy Attorney General, respectively), as is the nomination of a new head of OLC (Steven Bradbury). If Senators (including Senate Republicans) were at all committed to preserving the Senate's institutional prerogatives or the separation of powers, they would use the occasion of these nominations to insist on receiving the March 14th memo—and any other OLC memos (such as the November 2001 memo on military commissions) that formed the legal basis for governmental conduct in the war on terror (redacted, of course, to remove any properly classified information).

The public ought to be able to understand, and critique, the legal basis for the most important actions of state. In the absence of such transparency, there is little incentive for OLC not to adopt highly unorthodox and questionable legal views; the prospect of public critique invariably tests, and sharpens, legal analysis in a manner that is not possible if only a small coterie of like-minded lawyers will ever review the opinions. (See also my post here.)

Timothy Flanigan was the Assistant Attorney General for the Office of Legal Counsel (OLC) in the George H.W. Bush Administration. In the George W. Bush Administration, he was Deputy White House Counsel. He left the Government in December 2002, and has now been nominated to be the No. 2 officer at the Department of Justice -- the Deputy Attorney General.

According to Administration attorneys and other officials, Flanigan "discussed a draft" of the notorious OLC torture memo as it was being prepared in the summer of 2002. Accordingly, in connection with his pending nomination, several Senators on the Senate Judiciary Committee submitted written questions to Flanigan regarding the OLC torture memo and related issues.

-- "The President has recently and repeatedly reaffirmed the longstanding policy that the United States will neither commit nor condone torture."

-- "The United States has committed itself to complying with all of its obligations under the Convention [Against Torture]" -- including the requirement in Article 16 that the U.S. "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

-- "The President has said we will not treat people inhumanely."

Read a bit deeper, however, and one finds that these assurances are not quite what they appear to be. For example:

-- Although Flanigan concedes that he was present at two meetings where "OLC lawyers" briefed the White House Counsel on their analysis of the federal torture statute, he implausibly claims never to have seen any drafts of the torture memo (including the final draft), even though it was delivered to the White House Counsel on August 1, 2002, several months before Flanigan left office. [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan refuses to name the OLC lawyers who briefed him and Judge Gonzales.]

-- Flanigan claims that the statutory analysis of the torture statute he received from OLC in the summer of 2002 "appear[ed] to be reasonable" -- even though that analysis was thoroughly and unmercifully repudiated by OLC itself in December 2004, as soon as the slightest bit of public attention was brought to bear on it.

We Abide By Our Article 16 Obligation to Prevent Acts of Cruel, Inhuman or Degrading Treatment In Any Territory under U.S. Jurisdiction

-- Perhaps we ceaselessly abide by the obligation of Article 16 of the Convention Against Torture to prevent acts of cruel, inhuman or degrading treatment in any territory under U.S. jurisdiction; but the Department of Justice has taken the implausible view that that obligation does not apply overseas, and Flanigan writes that that DOJ analysis "appears to me to be correct." (For further discussion of this question, see this post.) [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan assures the Senator that even though in DOJ's view there's no legal requirement that we avoid cruel, inhuman and degrading treatment of detainees overseas, nevertheless "it is the policy of the Administration to abide by the substantive constitutional standard incorporated by the Senate reservation [prohibiting conduct that "shocks the conscience"] into Article 16," even overseas. Is that right? Well, then, how is the waterboarding and false burial of some detainees consistent with such a "policy"? And why, in that case, is the Vice President fighting tooth and nail to prevent Senators McCain and Graham from enacting a statute that would unequivocally prohibit cruel, inhuman and degrading treatment overseas?]

The President Has Required "Humane" Treatment of Detainees

-- When asked to define the "inhumane treatment" that the President has proscribed, Flanigan carefully explained that the President's February 7, 2002 memorandum directs "the United States Armed Forces" (i.e., not the CIA) to treat detainees humanely. (See this post and those linked therein.)

-- Flanigan also confirms that the President's directive, even as to the Armed Forces, is toothless. He writes that "'[i]nhumane treatment is not susceptible to a succinct definition. It is informed by the customary laws of war and depends on all of the relevant facts and circumstances." Practice has borne this out -- the view of the Department of Defense is that concedely degrading and humiliating treatment can still be "humane." [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan emphasizes that to say "humane" is not susceptible to a succinct definition "is not to say that the term lacks meaning or that the Department of Defense cannot provide service men and women with appropriate guidance in the context of particular facts and circumstances." Oh, well that's reassuring. Flanigan goes on to write that the White House has not provided guidance specifically on the question of what is "humane," and that he's not able to say whether -- as DoD has concluded -- "degrading and abusive" treatment can be humane.]

I had the privilege this week of debating with Richard Epstein the meaning of "privileges and immunities" in the Fourteenth Amendment. Although we obviously disagree on much, Professor Epstein is both a distinguished scholar, as distinguished a gentleman, and puts on a good show. Law students of all political persuasions should read and engage his work.

What was particularly striking about our debate was that, at the end of the day, he was far more a textualist than an originalism. A good deal of my presentation was devoted to how the antebellum Republican party understood slavery (shamelessly pilfered from Hyman and Wiecek's Equal Justice Under Law), and how that understanding explains why the Republican Party read congressional power under the 13th Amendment quite broadly. For most Republicans in 1865-66, the congressional power to prevent slavery both warranted extensive legal protections for persons of color, including federal guaranteed rights to make contracts and own property, and welfare rights. Rambling on, I indicated that we cannot understand the Fourteenth Amendment until we understand this broad reading of the 13th Amendment. Professor Epstein, I think it is fair to report, was less concerned with this detailed history. As he repeatedly emphasized, the text said slavery, and slavery means bondage. Perhaps he is right as a legal matter. I'm more of an historian, concerned with what people are trying to do with language than with whether they actually choose the correct words (though I am inclined to think that the differences between original meanings and original intentions are likely to be small, given that people are likely to choose words with public meanings consistent with their intentions). Still, the debate for me highlighted that, contrary to some thinking, we are all not originalists now. Sure there are feints in judicial opinions to what was thought in 1791 or 1868. But the dominant mode of analysis may well be textualism, worrying about the proper meaning of words than deciphering the many different meanings those words may have had when first ratified. And perhaps this is a good thing. Lawyers and judges, at best, are amateur historians. But they are good at doctrinal and language.

In his testimony today, Merrill proposes some very thoughtful, and provocative, ideas about how to better protect homeowners through procedural and compensation-based statutory reform -- and he explains why it's a mistake to try to carve out particular categories of eminent domain for prohibition. Just as importantly, Merrill brings some much-needed perspective to bear on five unfortunate "myths" about Kelo that have taken hold in the public imagination, including:

Myth One: Kelo breaks new ground by authorizing the use of eminent domain solely for economic development.

Myth Two: Kelo authorizes condemnations where the only justification is a change in use of the property that will create new jobs or generate higher tax revenues.

Myth Three: Kelo dilutes the standard of review for determining whether a particular taking is for a public use.

Myth Four: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access.

Myth Five: Takings for economic development pose a particular threat to 'discrete and insular minorities.'

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Many readers no doubt will disagree with some of what Prof. Merrill has to say. But I think most will agree that this is the most formidable, and most important, defense of Kelo yet available.

What I’ve said so far is that I think the legitimacy of doctrine should be evaluated by starting with what I’ve called constitutional meaning and asking whether the doctrine is a reasonable way to implement that meaning.An example of doctrine that’s easy to justify is heightened scrutiny for discrimination against women or racial minorities.I think that this heightened scrutiny overenforces the constitutional meaning—it will strike down some discriminatory acts that do not violate the constitutional meaning of the Equal Protection Clause—but overenforcement is justified because there’s a history of invidious discrimination against women and minorities, and both groups are underrepresented in legislative bodies.

Now I’m going to talk about some harder cases that I think are right: Lawrence v. Texas and Roe v. Wade.These are Due Process cases, so the first issue is what the meaning of the Due Process Clause is.The idea that the clause contains some substantive protections is very old.In its original form, it worked by setting limits on governmental power (rather than by identifying rights that defeated otherwise-valid exercises of government power).It did this by a priori deductions about the sorts of powers people would not want their government to exercise and would therefore not delegate to it: the power, for instance, to take property from A and give it to B.A government act purporting to accomplish such a thing might comply with formal requirements—it might be enacted in a procedurally valid manner—but it would not be a law, and therefore a constitutional provision prohibiting deprivations of liberty without due process of law could be used to strike it down.

The most general limit on the police power was the requirement that the government act in the public interest.At one point this was understood to mean that legislation had to confer benefits generally, rather than on particular groups, and the attempt to enforce this understanding is a large part of the story of the Lochner era, as Howard Gillman has shown.A more relaxed version would require only that the law produce net benefits, regardless of the distribution of benefits and burdens.That is the constitutional meaning I will be using.

This requirement, of course, is basically the requirement that laws be good policy.Since legislatures, for reasons of institutional competence and electoral accountability, are generally better at making policy judgments, the modern Court has generally adopted very deferential doctrine to enforce the public interest requirement.It will generally uphold legislative balancing of costs and benefits if the legislature might rationally have believed its choice to serve the public interest.So the key question for generating Due Process doctrine, I think, is whether there is some reason not to extend the ordinary deference in particular cases.This question is much like the question of when you should apply heightened scrutiny in Equal Protection cases.

Lawrence (which does not defer, though it does not explicitly apply heightened scrutiny either) is relatively easy from this perspective.More searching scrutiny for laws burdening the interests of gays and lesbians is justified for the same reasons explicitly heightened Equal Protection scrutiny is justified for discrimination against women and racial minorities. There are still significant portions of the population who think, for instance, that a criminal ban on sodomy is an effective means of protecting some important state interest, and not an expression of animus, but the Court seems to have decided that that view is going to lose in the long run.I think it’s correct in that estimation, which makes the decisions right, but I think these are somewhat harder cases than discrimination against women or minorities because the new consensus hasn’t formed yet.

Roe is substantially harder.What I’ve said about the meaning of the Due Process Clause should suggest that I don’t view it as a repository of unenumerated fundamental rights.I don’t think the search for unenumerated rights is necessarily illegitimate, but it would make more sense to characterize that jurisprudence as enforcement of the 9th Amendment and the 14th Amendment’s Privileges or Immunities Clause.Still, even granting (as I do, but many people don’t) that these provisions, taken together, suggest the existence of unenumerated constitutional rights against state governments, there remains the question of how we justify allocating decisionmaking authority to judges rather than legislatures.Heightened scrutiny in modern fundamental rights jurisprudence is justified by the “fundamental” nature of the right, which makes the crucial question the distinction between fundamental rights and mere “liberty interests.”But I don’t think anyone has come up with a particularly satisfying way of determining fundamentality, much less one at which judges are clearly better than legislatures.

The way I prefer to analyze these issues is to suppose that the constitutional requirement is that the legislature act in the public interest, in such a way that the benefits of a law exceed its burdens.Translating this requirement into doctrine is primarily a matter of determining when the legislature can be trusted.In the abortion context, the fact that the burden falls most heavily on a relatively politically weak group (not women generally, but younger women, and perhaps especially younger, single, lower-income women) suggests that some degree of judicial second-guessing might be justified.One way to do this would be conventional heightened scrutiny, which would get you something like Roe or Casey.A more finely-tuned approach to evaluating the legislative balancing of life vs. liberty might be to look at the way in which states generally handle the life/liberty tradeoff—do they have good Samaritan laws, mandatory blood or postmortem organ donations, etc.?Such an analysis suggests that when the liberty of all is involved, states generally decline to impose even fairly minimal burdens in order to promote life.And that in turn suggests that women’s liberty is being discounted in an impermissible way.(You could boil this down to the point that if men could get pregnant, abortion would be legal.Or you could expand it by reading Jack’s recent book, What Roe v. Wade Should Have Said..)

Roe and Lawrence are examples of cases where I think there are plausible reasons not to defer to the legislative judgment.You can start with a plausible constitutional meaning and tell a plausible story about why you’ve chosen a non-deferential doctrinal rule to enforce that meaning.I’m not going to discuss the Commerce Clause cases here, but I think it’s harder to do the same thing with Morrison and Lopez, which may be why that doctrinal experiment seems to be collapsing.And I think it’s impossible to do with my last example, strict scrutiny for race-based affirmative action.

I’ve said before that I take the core meaning of the Equal Protection clause to be a prohibition on discrimination inspired by animus—discrimination designed to stigmatize or inflict harm for its own sake.We could also read it as prohibiting unjustified discrimination, and operationalize that by demanding that the benefits to society generally exceed the costs inflicted on the burdened group.Having decided on that constitutional meaning, courts then face the question of when to leave this balancing question with the legislature (the default rule) and when to second-guess the legislative assessment.None of the ordinary reasons—ignorance about the characteristics or interests of the burdened group, indifference to their welfare, distribution of political power—will support heightened scrutiny for race-based affirmative action.The decision of a majority to burden itself in order to benefit an underrepresented majority is the least plausible decision for judges to second-guess.

My perspective on the creation of doctrine suggests that strict scrutiny for race-based affirmative is of dubious legitimacy.It could of course be defended by an alternate account of constitutional meaning—namely, that what the Equal Protection Clause means is that no race-based discrimination is permitted.That is how conservative Justices tend to write.But that is not what the text says, and I have not seen any serious attempt to argue that the drafters thought they were forbidding all differential treatment based on race.(There are interesting originalist things to say about the scope of the Equal Protection Clause, namely its application to civil rather than political or social rights, and to rights rather than benefits, but those do not support heightened scrutiny for affirmative action either.)

I think strict scrutiny for race-based affirmative action is a strong candidate for the least legitimate piece of current constitutional doctrine.I expand on that point in the book, and I also offer some thoughts about why we ended up where we have—namely that the Court has lost sight of the distinction between doctrine and meaning—but I don’t think I can present those points intelligibly in this space.Indeed, I have some doubts about the intelligibility of what I’ve presented thus far—it makes me think that perhaps I should actually finish the book before trying to summarize it.But, if you’ve read this far, thanks, and I hope you keep your eyes open for the book, which should be coming out next summer.The current working title is This Honorable Court.